Thursday Thinkpiece: National Security Law, 2e

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National Security Law, 2e

Editors: Craig Forcese & Leah West
ISBN: Print (Paperback): 9781552215517
Publisher: Irwin Law
Page Count: 800 pages
Publication Date: December 1, 2020
Regular Price: $75.00

Excerpt from pages 3–7; 23–29; 57–61 (citations omitted)

Chapter 1: Scope

This is a book about the law governing the Canadian state’s response to serious crises; that is, events that jeopardize its “national security.” “National security” is a term familiar to most people. A search of Canada Newsstand — an electronic archive of stories drawn from Canadian newspapers — suggests that the words “national security” appeared over 54,000 times in articles between 11 September 2001 and January 2020. During the (longer) period 1977 to 11 September 2001, the phrase appeared roughly 22,000 times. This is not a scientific survey. It does, however, point to the increased prominence of the concept.

And yet, despite its ubiquity, the expression “national security” does not lend itself to precise definitions.

…

In circumscribing the meaning of national security, this book draws both on the Supreme Court’s approach in Suresh and the government’s 2004 national security policy. Specifically, it focuses on how law and legal instruments grapple with serious threats of substantial harm; that is, plausible threats with the potential to inflict massive injury on life and property in Canada. In practice, these threats stem from a variety of sources, including those that figure in the 2004 government policy, namely, terrorism (especially involving weapons of mass destruction), natural disasters and epidemic disease, and foreign attacks and domestic insurrections.

These national security threats are different from the dangers countered by the classic criminal law or remedied by civil causes of action. It is not that national security threats necessarily pose a greater harm to the physical safety of Canadians. Assaults, murder, and traffic fatalities occur in larger numbers than terrorist attacks, epidemics, or missile strikes and as a result, injure and kill Canadians in larger numbers. Assaults, murder, and traffic fatalities — and the harm they cause — are the backdrop of everyday life, however tragic. What distinguishes these sources of injury from national security threats is their banality.

By comparison, terrorism, natural disasters, epidemic disease, foreign attacks, and domestic insurrection manifest themselves infrequently. They are uncommon, low-probability events. Still, when they arise, these events may injure and harm Canadians on a scale that is potentially unbounded and indiscriminate, unless checked by the state. As a result, they are shocking to public opinion and destabilizing of the political, economic, and social status quo. Moreover, assaults on the state, and the society that underpins it galvanize strong political responses. The attacks perpetrated against the United States on 11 September 2001 resulted in the horrific, traumatizing, and televised loss of almost three thousand lives. They also produced the tumultuous “war on terror,” which under different names continues almost two decades later. In contrast, the loss of 42,611 lives in traffic fatalities in the United States in 2001 generated no equivalent response.

This reality influences the approach to national security taken in this book. Our core focus is low-probability, high-consequence events that risk producing significant political turmoil. This book is not, however, simply a resuscitation of laws designed to address these risks. For one thing, a physical injury-based definition of national security begins to look stale during a period of renewed great power competition. In such periods, economic and political jockeying among states heightens our focus on issues like economic espionage and “foreign influenced activity” designed to affect Canadian decision-making. For another, national security law is more than laws on threats. It is also the law that creates the institutional structures tasked with addressing threats, anticipated or not, and the law responsible for protecting the integrity of those institutions.

For these reasons, in this book, we approach national security law as a system. The purpose of national security is the identification and minimization of national security threats … Activities taken in pursuit of these objectives must be lawful, effective, efficient, proportionate to the threat, and necessary in the context. Ideally, national security law is the set of rules that fulfils these goals, and in this book we regularly evaluate it against these objectives. To do so, and in approaching national security law as a system, we have chosen to organize our chapters around five themes: structure, threats, information, response, and accountability.

…

[Through] three “generations” of national security law, the government has confronted … hard dilemmas. National security law must reconcile to the need to preserve security, with respect for rights and freedom. The national security powers exercised by agencies risk trenching on important rights and freedoms, if used indiscriminately. Protecting national security is often a highly emotive and urgent challenge, one that risks driving states to exercise extraordinary power in ways that sit uncomfortably with conventional understandings of the rule of law and the rights and liberties of human beings. Active efforts to pre-empt security threats place the state in the difficult role of prognosticator. It must anticipate events that have not yet unfolded and sometimes take firm steps to halt danger. Here, there is a real risk of action based on “false positives.” In national security law, the core challenge is to loosen constraints on state power without precipitating significant collateral damage to other rights and social values. The difficulty in balancing legal regimes — those crafted to preserve national security and those which exist to create a state worth securing — is the matter to which Chapter 2 turns. In doing so, it describes the hard national security dilemmas that crosscut the field, underscoring along the way certain substantive legal themes that recur in this book.

Chapter 2: Dilemmas

Canada’s one-and-only national security policy statement noted in 2004 that there is “no greater role, no more important obligation for a gov­ernment, than the protection and safety of its citizens.” It urged that a “clear and effective approach to security is not just the foundation of our prosperity — it is the best assurance that future generations will continue to enjoy the very best qualities that make this country a place of hope in a troubled world.”

There is undeniable truth in these assertions. National security cre­ates an environment in which other values flourish. Before the Supreme Court of Canada, government lawyers reportedly argued in 2006 that protecting national security “is not just an option or a policy choice, such as the amount to be invested in health care. It is the sine qua non to the very existence of the rule of law and our democratic system of gov­ernment.” Without adequate security, the rights found in instruments such as the Canadian Charter of Rights and Freedom are unattainable.

To claim, however, that efforts to protect Canadian national sec­urity should necessarily trump other democratic values overstates the case. In response to the government’s Supreme Court argument, Fish J reportedly shot back that, absent rights and the rule of law, “we’ll be living in North Korea.” In other words, lending too much primacy to national security at the expense of rights and liberties creates a state not worth securing.

The challenge lies, therefore, in defending national security in a manner that affirms rather than undermines our values. This tension sits at the heart of national security law and courses through this book. In the chapters that follow, we point to dilemmas in specific areas. This chapter takes a more general approach, drawing out several key themes implicated by the balancing of national security with individual rights and freedoms. It begins with a broad discussion of the relationship between rights and security and then highlights several hard “rights/ security” dilemmas. In so doing, it also provides an overview of several central and recurring legal doctrines.

PART I: THE RELATIONSHIP BETWEEN NATIONAL SECURITY AND RIGHTS

A. SECURITY AS THE FOUNDATION FOR RIGHTS

The seventeenth-century philosopher Thomas Hobbes famously described the lives of humans in the anarchic “state of nature” as “soli­tary, poor, nasty, brutish, and short.” Where no states exist, only those individuals independently powerful enough to subdue threats enjoy rights and freedoms, or indeed survive. In contrast, a successful state marshals power and resources, collectivizing responses to hazards to create security for its inhabitants. Indeed, Hobbes urged it is exactly the human need for security that prompts people to form states in the first place.

Hobbes saw little room in his model for inherent rights: to wrest humanity from fatal anarchy, the state must be absolute, and all civil rights possessed by individuals are subject to the overarching impera­tive of preserving security. Western states no longer embrace this model of absolutism; yet, even those warmly predisposed to rights emphasize security. For instance, former Canadian justice minister Irwin Cotler rejected a stark dichotomy between national security and civil liberties. Referring specifically to anti-terrorism, Cotler argued that “anti-terror­ism law and policy is human rights legislation in that we’re dealing with the protection of a democracy and the fundamental human rights of its inhabitants.” Cotler’s argument and the government’s 2004 national security policy were both premised on the idea that national security underpins the right to life, liberty, and security of the person, a concept enshrined in section 7 of the Charter. These views demand attention. While from a strictly legal perspective, courts generally interpret sec­tion 7 as a constraint on state power, not a justification for its exertion, the political point is indisputable: creating a secure environment is a prerequisite for safeguarding universal rights.

Nevertheless, it is dangerous to envisage national security as foun­dational to human rights themselves. Governments may abuse such reasoning to forestall, limit, or eliminate individual rights and liberties in times of crisis. Substantial international and domestic law exists in an attempt to defend against the denial of rights in the name of national security emergencies.

More subtly, security primacy may create human rights winners and losers. In the name (putatively) of securing the life, liberty, and security of the majority, the national security policies of the state may sacrifice the rights of a minority, a point explored later in this chap­ter. Alternatively, a geography of rights observance may emerge: in the name of preserving rights at home, the state violates the rights of those abroad. States may accept collateral injuries to foreigners to a much greater extent and in much greater number than they will tolerate for their own nationals. The law’s record of successfully guarding against these patterns is mixed.

B. RIGHTS AS THE FOUNDATION FOR SECURITY

One counter to the dangers of security primacy is to reverse the rights/security linkage. In the age of 280-character Twitter slogans, it is common to find invocations of Benjamin Franklin’s 1755 observa­tion: “those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” In fact, Frank­lin was talking about something other than the trade-off of rights for security. However, to the extent commentators view his passage as a stout defence of rights in the face of security imperatives, it has mod­ern echoes. The secretary-general of Amnesty International’s Canadian section argued in 2006, for instance, that “above all else security must be about human rights. People simply are not secure and will never be secure unless their basic human rights are scrupulously observed.” This passage might be read to imply that rights are not to be tempered in the name of national security, because without rights, there is no security. Indeed, Hobbes’s near-contemporary John Locke urged that without rights, the state itself has no legitimacy.

There is obvious merit to this view, especially when examined over a medium- to long-term time scale. Rights-repressing states may fuel the very insecurity they purportedly seek to forestall. Still, an unalloyed policy of rights primacy creates different perils. It is indisputable that unwavering adherence to rights will curtail the national security responses open to governments and may make rights-observing states more vulnerable in the immediate term to security threats. For those who accept this constraint, that is a cost of liberty. This calculation, the Israeli Supreme Court concluded, 

is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the rule of law and recognition of an individual’s liberty constitutes an important com­ponent in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties.

Jim Judd, the then-director of the Canadian Security and Intelligence Service (CSIS), made a similar observation in 2007: “[d]emocracies have taken a long period to develop and their values, laws and institutions continue to provide inspiration to those without the luxury of living in one. It is thus essential that in responding to threats such as terrorism we do so in a fashion that best reflects what democracies stand for.”

It is also true, however, that rights must not be the rigid “suicide pact” about which US Supreme Court Justices Jackson and Goldberg both warned in litigation concerning the US Constitution. To conceive of rights as always unyielding empowers those who seek to destroy the very social and political structures that promote rights in the first place.

C. THE CONCEPT OF SYNERGY

In sum, lending primacy to either rights or security jeopardizes the realization of the other. The more nuanced approach is to conceive sec­urity and rights, not as hierarchical objectives, but as mutually syn­ergetic ambitions. As Amnesty International has noted, rights will “always be precarious if security is not assured, and secur­ity will inevitably be tenuous at best if not firmly grounded in human rights.”

This approach forestalls the need to sacrifice automatically one interest for the other, where they clash in the immediacy of the moment. However, it also complicates decision making. The Supreme Court made stark the challenges raised by this approach in its adjudication of Canada’s counterterrorism laws. The Court described terrorism as a “manifest evil” involving the “random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear.” Govern­ments must craft laws to meet and match this peril: “[t]he challenge for democracies in the battle against terrorism is not whether to respond, but rather how to do so. This is because Canadians value the import­ance of human life and liberty, and the protection of society through respect for the rule of law.”

This passage implies that the law speaks in times of peril. There is a “need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule of law, and the principles of fundamental justice.” A “response to terrorism within the rule of law preserves and enhances the cherished liberties that are essential to democracy.” The Court urged that it is “a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commit­ment to those values.” A democratic state must perform “a balancing of what is required for an effective response to terrorism in a way that appropriately recognizes the fundamental values of the rule of law.”

The Israeli Supreme Court — the highest court of the democ­racy most harried by terrorism — invoked a similar image of balance: “human rights cannot receive their full protection, as if there was no terrorism, and state security cannot receive its full protection, as if there were no human rights. A delicate and sensitive balancing is needed.”

How states strike this balance varies depending on the interests in play. Part II outlines several specific dilemmas posed by the security/rights relationship and the state’s attempt at equilibrium.

PART II: NATIONAL SECURITY DILEMMAS

The core national security dilemmas can be labelled as follows: preserv­ing democracy in combatting tyranny; deploying the rule of law in reacting to chaos; preserving liberty in defending freedom; protecting people while leaving them alone; acting transparently in responding covertly; and acting decisively in the fog of war.

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Lurking in all these dilemmas is the notion that rigid adherence to conventional values must give way in the face of security threats. Since 9/11 many have justified actions based on “lesser evils”: the idea that sometimes a small evil must be done to avert a larger evil. That may be true. No political leader should responsibly urge fiat justitia et pereat mundus — let justice be done, though the world perish. However, the lesser evil remains just that, an evil, and it is not always clear when the lesser evil graduates to the more significant wrong. . . .

 [Still] national security law should not rush too quickly to embrace lesser evils. Otherwise, we might well suffer lesser evil without doing anything to stop the greater wrong. This book now turns to a specific examination of how Canadian law has responded to the hard dilemmas outlined in this chapter.